A Commentary on Maritime Piracy and International Law

By:

Atty. Romeo Dax B. Calamaya

Piracy as a word first originated from the Greek word peirateia

which means brigands of the sea.1 It was first recorded as word in the
English language in 1419, however piracy or piracy jure gentium (piracy
by the law of the nations) as it is known was part of jus gentium (law of
nations), under Roman Law.2

Piracy has been around as long as the oceans have been used
as trade routes for shipping purposes. The problem of piracy has been
an age-old trepidation among seafarers and the shipping trade and
industry in general. In certain periods, it has spiraled out of control that
it had such a profound impact throughout the ages that by the
sixteenth century, jurists such as Grotius had already developed the
concept that nationals who committed piracy on terra nullius (the high
seas) placed themselves beyond the protection of any state and were
deemed hostes humani generis (enemies of the human race).3

Thus, a pirate can be tried and punished by any state regardless

of whether injury had been caused to the State or its nationals. The
rationale behind this is that a pirate acquires a stateless status and
therefore places himself beyond the protection of any State and the
enemy of all mankind, since piracy an offense against the law of
nations, meaning that in its jurisdictional aspects it is sui generis, though
statutes may provide for its punishment. It is an offense against the law
of nations and as the scene of the pirate’s operation is in the high seas,
wherein no nation has a right or duty to police, a pirate is denied the
protection of the flag he may carry and therefore is treated as an
outlaw and an enemy of mankind whom any nation may in the interest
of all capture and punish.

For this reason, the crime of piracy under international law has
been compared to a breached of jus cogens which is a peremptory
norm that all states must uphold. It therefore became the earliest
invocation of the concept of universal jurisdiction which can only be
invoked by a State to prosecute general piracy against those acts that
fall within the definition of general piracy tacitly or explicitly agreed
upon by members of the international community.

Although it does not preclude States to proscribe any number of

acts as municipal piracy but to the extent that such acts do not also
constitute general piracy. Principles of customary international law
preclude states from availing themselves, in prosecuting such offenses,
of the universal jurisdiction that applies to the prosecution of general
piracy. The reason behind this is that since general piracy is created by
international consensus, it is restricted in substance to those offenses
that the international community agrees constitute piracy.

For example in the Philippines, prior to its amendment, piracy is

defined in the Revised Penal Code as that committed by any person
who, on the high seas, shall attack or seize a vessel or, not being a
member of its complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or personal belongings
of its complement or passengers. The aforementioned definition is more
in consonance with that of general piracy than municipal piracy.
However, with the enactment of PD 532, committed even by the crew
or passengers of the vessel and can occur anywhere within the internal
waters of the Philippines up to the high seas. Such divergence in legal
concepts regarding piracy among coastal states brings about
conflicting applications of their domestic laws which may hinder efforts
to curb the effects of piracy.

On the other hand, with respect to international law legal basis

for law enforcement against piracy is set out in Articles 100 to 107 and
110 of the United Nations Convention on the Law of the Seas (UNCLOS).
These articles repeat almost literally the provisions contained in Articles
14 to 22 of the Geneva Convention on the High of the Seas of 1958,
and that some states, including the United States as well as Israel,
Switzerland and Venezuela, while not bound by UNCLOS are bound by
Geneva Convention, entails that as a matter of either customary or
conventional law, these Articles state the law as currently in force.

To be exact, one of the difficulties in discussing the history of the

law of piracy is the lack of consistency in the use of term. In short, there
is little consistency among the sources as to whether the term pirate is
being used: as a mere term of rhetorical condemnation; to distinguish
other legal categories such as (privateers or insurgents) to refer to a
crime at international law; or refer to a crime at a national or municipal
law.

At the beginning of the twenty-first century piracy is best

considered a national crime for which international law provides a
permissive rule of jurisdiction. There has been no serious attempt to
establish an international piracy tribunal. There has been some judicial
interest at the national level of some states to inquire into the meaning
of piracy at international law if only to examine the compatibility of
national laws and prosecutions with the provisions of UNCLOS. However,
it appears generally accepted that the function of the international
law of piracy is not to permit prosecutions by forum States lacking any
conventional nexus to the crime rather than to directly criminalize
conduct under international law in the manner of, for example, war
crimes.

Historically, the picture is more confused. Many treatments of the

subject tend to conflate very distinct historical practices without
appreciating that the concept of piracy have different meanings in
different times and places. For example, while Cicero is often quoted
for the proposition that “pirates are the enemy of all mankind” it is clear
that in ancient Rome piracy is not a crime per se. It was, rather a
special branch of the laws of war.

Similarly, the meaning of piracy in the 17th, 18th and 19th Century
was bound up in very different ways with the laws of war. Broadly, the
question was one of state sanction. At a time before States had large
standing navies, it was convenient for majors to have a body of
licensed privateers that they could incorporate into navies in times of
war.